01974324
01-28-2000
Lynda K. Curtis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency,
Lynda K. Curtis v. United States Postal Service
01974324
January 28, 2000
Lynda K. Curtis, )
Complainant, )
)
v. ) Appeal No. 01974324
) Agency No. 3-W-0147-89
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning her
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. � 67 et seq.<1> Accordingly, the appeal is accepted in accordance
with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of race (Caucasian female married to a Black
male), sex (female), age (over 40), and reprisal (prior EEO activity),<2>
when she was terminated during her probationary period for unsatisfactory
performance.
BACKGROUND
Complainant was a probationary letter carrier with the Sarasota, Florida
Post Office. She was terminated on June 20, 1989, for failing to perform
her duties in a manner that showed satisfactory progress in achieving an
acceptable level of proficiency. Complainant filed a formal complaint
on August 11, 1989, claiming discrimination on the bases of sex, age
and reprisal.
Complained claimed that her supervisor (Supervisor) discriminated against
her by marking her Absent Without Leave when she was in line to punch a
time clock; harassing her by following her on her routes and writing notes
when she did something wrong; and that she was not given proper training.
The Supervisor stated that he terminated complainant because of her
mis-deliveries, numerous safety violations, tardiness, and continued use
of over-time on an auxiliary route. The record contains complainant's
30 and 60 day evaluations which indicate instances of tardiness, repeated
safety violations, a caustic attitude, and failure to pass the 30 day and
60 day case counts. The record also notes that a comparison employee,
a female, over age 40, who was not terminated during her probationary
period, passed her 30, 60 and 90 day case counts, and had no safety
violations. The record contains a training check list of training
received by complainant.
Complainant's second line supervisor (Manager) averred that, because
complainant's husband was an acting supervisor at that office, he reviewed
the complainant's performance and the Supervisor's recommendation to
terminate her. The Manager stated that the Supervisor documented several
areas of complainant's poor performance and inability to show improvement
on an ongoing basis.
The Supervisor averred that he was not aware of complainant's prior EEO
activity. The Supervisor was not employed by the agency at the time of
complainant's 1986 termination or first EEO complaint.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
Four pre-hearing conferences were held with four different AJs during
which time complainant raised race (Caucasian) as an additional basis of
discrimination claiming that the agency discriminated against her because
she was white and her husband was Black.<3> At the third session of
the fourth pre-hearing conference, the parties agreed in writing to
hold the case in abeyance while the agency issued a final decision (FAD)
finding that complainant could not raise the additional basis of race,
complainant's appeal of that FAD to the Commission, and the Commission's
decision on the issue.
The agency then notified complaint by letter dated February 26, 1993,
that the agreement fully resolved the complaint and the case was closed.
On March 16, 1993, complainant notified the agency that it breached
the agreement. The agency failed to respond and complainant appealed
to the Commission.
The Commission issued a decision on December 21, 1993, finding that the
agency breached the settlement agreement.<4> The Commission ordered
the agency to reinstate the complaint and continue its processing.
The agency issued a final decision on June 22, 1995 finding that
complainant failed to establish a prima facie case of discrimination
based on race, sex, or age because she did not show that she was treated
differently than similarly situated employees. The agency found that
complainant did not establish a prima facie case of discrimination
based on reprisal because the Supervisor was not aware of her prior
EEO activity. The agency found that the Supervisor stated legitimate,
non-discriminatory reasons for the termination; namely complainant's
unacceptable performance.
Complainant appealed on July 25, 1995, and the Commission, in Curtis
v. U.S. Postal Service, EEOC Request No. 01955687 (October 22, 1995),
remanded the complaint for a supplemental investigation.<5> On April 3,
1997, the agency re-issued the FAD of June 22, 1995. Complainant appealed
arguing that the FAD issued on April 3, 1997, was a duplicate of the
one dated June 22, 1995, and the agency was not in compliance with the
Commission's decision.
The agency argued that it complied with the Commission's decision to
reconstruct the file. It argued that the FAD issued on June 22, 1995,
resulted from a complete investigative report, and that the same report
was produced as a result of the Commission's order for supplemental
investigation. It argued that reconstruction of the original information
did not change any of the data contained in the documents included in
the file, therefore, an identical FAD would naturally result.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In
an ADEA case, the ultimate burden remains on complainant to demonstrate,
by a preponderance of the evidence, that age was a determinative factor.
Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., complainant's poor
performance; her tardiness, absences during a probationary period,
numerous safety violations, missed deliveries and failure to pass
two inspections. The Supervisor's evaluation was reviewed by the
Postmaster who concurred with the decision, noting that complainant's
poor performance was well documented.
The burden returns to complainant to demonstrate that the agency's
reason was a pretext for discrimination, that is, that the agency was
more likely motivated by discriminatory reasons. Burdine, 450 U.S. at
253. Complainant provided no evidence in support of her claim that the
agency terminated her based on her race and association with a Black
male, sex or age. Nothing in the record indicates that complainant was
discriminated against because of her marriage to a Black male. In fact,
the Postmaster averred that he carefully reviewed the Supervisor's
recommendation to terminate complainant because her husband was a
respected employee and acting supervisor in that office. The record
reveals that another white, female, over age 40 who performed well
was retained for employment. Complainant fails to prove that she was
treated differently than similarly situated employees based on race,
racial association, sex, or age and has not proven that the agency's
articulated reasons were a pretext for discrimination.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that she engaged in
protected activity; 2) that the alleged discriminating official was aware
of the protected activity; 3) that she was disadvantaged by an action of
the agency contemporaneously with or subsequent to such participation;
and 4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The Commission finds that complainant fails to establish a prima
facie case of discrimination based on reprisal. Complainant engaged in
protected activity when she filed an EEO complainant in 1986 and in 1989.
However, the Supervisor, who was responsible for terminating complainant
was not employed by the agency at the time, and averred that he was not
aware of her EEO activity.
Assuming arguendo that the Supervisor was aware of complainant's prior
EEO activity, the agency stated legitimate, non-discriminatory reasons
for the termination, and complainant failed to show that the documented
instances of poor performance and absences were incorrect or were a
pretext for discrimination based on reprisal.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION
January 28, 2000 _______________________
DATE Carlton Hadden,
Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage
in the administrative process. Consequently, the Commission will
apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at
WWW.EEOC.GOV.
2 Complainant filed two prior EEO complaints. The first was filed when
complainant was terminated from the agency on April 4, 1986. The second
concerned breach of a reinstatement agreement. Complainant was reinstated
as a Letter Carrier with a new probationary period based on a settlement
resolution dated January 11, 1989.
3 Complainant claimed in her April 4, 1986 complaint that a manager
told her the Sarasota Post Office was not ready for a mixed couple.
The manager was no longer employed at Sarasota at the time of the
instant complaint.
4 See Curtis v. U.S. Postal Service, EEOC Request No. 01933139 (December
2, 1993).
5 The agency was unable to locate the complaint file.. The Commission
specifically ordered that the file be reconstructed to include all
documents normally required in the administrative processing of an
EEO complaint. Subsequently, the agency located the complaint file.